Second Department of the Appellate Division, the Monroe Place Courthouse in Brooklyn.

In August 2011, a Brooklyn State Supreme Court jury convicted Wayne McMitchell of sexually abusing his two step-daughters. The two girls, who were 17 and 16 at the time of the trial, had testified against McMitchell, claiming that he has assaulted each of them when they were younger. The girls' mother, from whom Mitchell was divorced, had also testified against him. The prosecution's case largely rested on those three accounts.

But perhaps those accounts weren't so credible. Last week, an appeals court called the testimonies "contradictory and inconsistent" in a decision to overturn McMitchell's conviction.

At the heart of the reversal: the suspicious timing of the mother's initial accusation against McMitchell, which came amid a heated custody battle.

"Although according to the mother's testimony, she had known about the alleged abuse of her oldest daughter since October 2009, she did not contact the police until December 2009, close to the time that the father filed a petition for custody and visitation," the Appellate Division's Second Department ruled, in a decision filed last Wednesday.

As the court summed up the accusations:

The younger stepdaughter testified that the alleged abuse occurred approximately twice per week between 2000 and 2004, starting when she was 5 years old and continuing until she was 9 years old. The older stepdaughter testified to three incidents of abuse, one in 2006 and two in 2008, when she was approximately 12 and 14 years old, respectively. All of the alleged abuse against the stepdaughters took place in their mother's home.

McMitchell, however, had separated from their mother and moved out of her home by 2002. From 2003 to 2005, the mother had a restraining order against McMitchell. During one stretch in 2004, McMitchell "conducted all of his visits with the children outside of the home."

"The mother testified that she and the defendant had a contentious relationship after they separated and that, when they were fighting, the defendant was not allowed to see his stepchildren or the three biological children he also had with the mother," the court stated.

The mother and the oldest stepdaughter offered different explanations for how the mother learned of McMitchell's alleged actions.

"While the older stepdaughter testified that she blurted out to her mother over the phone that the defendant had sexually abused her and was relieved to have finally told her, the mother testified that she was informed of the alleged abuse by the mother of the older stepdaughter's boyfriend," according to the court. "The mother testified that, when she confronted the older stepdaughter, the latter did not want to talk about it."

Both agreed, though, that the mother first heard about it in October 2009. She told the police about it in December 2009. She contacted authorities again in March 2010, because she said that she discovered that her younger daughter had allegedly been abused as well.

The March accusation came "shortly before the father was to appear in Family Court in connection with the custody and visitation proceeding." The mother said that the timing was coincidental.

The appeals court, however, found it too suspicious.

"Given the contradictory and inconsistent testimony of the prosecution's witnesses, we find that the evidence does not credibly support the defendant's conviction on any of the charges beyond a reasonable doubt," the Appellate Division court ruled.

We Recommend

You might remember the Manhattan Beach CA witch hunt and the one in Washington State going back almost 40 years. The allegation,once made, is devastating. The defendant must then prove a negative. Good thing there was a restraining order against the father barring him from the property where the crime was supposed to have been committed. and that there was conflicitng factual testimony. Colorado also had cases like this. Juries can be very dangerous, assuming that something must have happened - after all, the father was arrested. See also Jon Benet Ramsey indictment news of this past week. Inyeresting appeal, excellent lawyering.